This order is subject to further editing and
modification.The final version will
appear in the bound volume of the official reports.

No.04-08

In re: Proposed Amendments to Wis. Stat. §§ 809.30, 809.32 and 809.62

FILED

JUL 30, 2008

David R. Schanker

Clerk of Supreme Court

Madison,
WI

On September 30, 2004, the Wisconsin Judicial Council
filed a petition seeking to amend §§ 809.30(2)(b), 809.32(4) and 809.62(1)
through (7) of the Rules of Appellate Procedure. This petition was the culmination of extensive
work by a Judicial Council Committee, with assistance from the Appellate
Practice Section and Criminal Law Section of the State Bar, and the Wisconsin
Association of Criminal Defense Lawyers.

A public hearing was conducted on the petition on March
15, 2005.At the ensuing open administrative
conference, the court discussed certain aspects of the petition and took the
remaining issues under advisement.The
matter was discussed at subsequent open conferences on March 21, 2007, and June
25, 2008, at which time the court voted unanimously to adopt portions of the
petition, as set forth herein, and to deny other aspects of the petition.The effective date of the amendments adopted
herein will be January 1, 2009.

IT IS ORDERED that effective January 1, 2009:

Section 1.809.107 (2) (bm) (intro.) of the statutes is
amended to read:

809.107 (2) (bm)
Notice of intent to pursue postdisposition or
appellate relief. (intro.) A person shall
initiate an appeal under this section by filing, within 30 days after the date
of entry of the judgment or order appealed from, as specified in s. 808.04
(7m), a notice of intent to pursue postdisposition or appellate relief with the
clerk of the circuit court in which the judgment or order appealed from was
entered. Also within that time period, the appellant shall serve a copy of the
notice of intent on the person representing the interests of the public,
opposing counsel, the guardian ad litem appointed under s. 48.235 (1) (c) for
the child who is the subject of the proceeding, the child's parent and any guardian
and any custodian appointed under s. 48.427 (3) or 48.428 (2). If the
record discloses that final adjudication occurred after the notice of intent
was filed, the notice shall be treated as filed after entry of the judgment or
order appealed from on the day of the entry of the final judgment or order.The notice of
intent shall include all of the following:

Section 2.809.30 (2) (b) (intro.) of the statutes is
amended to read:

809.30 (2)
(b) Notice of intent to pursue
postconviction or postdisposition relief. (intro.) Within 20 days after the
date of sentencing or final adjudication, the person shall file in circuit
court and serve on the prosecutor and any other party a notice of intent to
pursue postconviction or postdisposition relief.If the record discloses that sentencing or
final adjudication occurred after the notice of intent was filed, the notice
shall be treated as filed after sentencing or final adjudication on the day of
the sentencing or final adjudication.The notice shall include all of the following:

Section 3.The following Judicial Council Committee
Comment to s. 809.30 (2) (b) is included to read as follows:

Judicial Council
Committee Comment

The amendment to s. 809.30 (2) (b) allows a
notice of intent that is filed too early to be deemed filed on the date that a
judgment and sentence or other final adjudication is filed. This is consistent
with the procedure applicable to civil appeals under s. 808.04 (8).

Section 4.809.32 (4) of the statutes is amended to
read:

809.32 (4)No-merit petition for review. If a
fully briefed appeal is taken to the court of appeals and the attorney is of
the opinion that a petition for review in the supreme court under s. 809.62
would be frivolous and without any arguable merit, the attorney shall advise
the person of the reasons for this opinion and that the person has the right to
file a petition for review. If requested by the person, the attorney shall file
a petition satisfying the requirements of s. 809.62 (2) (d) and (f) and the person
shall file a supplemental petition satisfying the requirements of s. 809.62 (2)
(a), (b), (c), and (e). The petition and supplemental petition shall both be
filed within 30 days after the date of the decision or order of the court of
appeals.An opposing party may file a
response to the petition and supplemental petition as provided in s. 809.62
(3) within 14 days after the service of the supplemental petition.

Section 5.809.62 (1) (intro.) of the statutes is
renumbered s. 809.62 (1m) and amended to read:

809.62 (1m)
A party may file with the supreme court a petition for review of an adverse
decision of the court of appeals pursuant to s. 808.10 within 30 days of the
date of the decision of the court of appeals. Supreme court review is a
matter of judicial discretion, not of right, and will be granted only when
special and important reasons are presented. The following, while neither
controlling nor fully measuring the court's discretion, indicate criteria that
will be considered:

Section 6.809.62 (1) (a) to (e) of the statutes are
renumbered 809.63 (1r) (a) to (e).

Section 7.809.62 (1g) of the statutes is created to
read:

809.62 (1g)Definitions.In this section:

(a) "Adverse decision"
means a final order or decision of the court of appeals, the result of which is
contrary, in whole or in part, to the result sought in that court by any party
seeking review.

(b) "Adverse decision" includes the court of
appeals' denial of or failure to grant the full relief sought or the court of
appeals' denial of the preferred form of relief.

(c) "Adverse decision" does not include a
party's disagreement with the court of appeals' language or rationale in granting
a party's requested relief.

Section 8.The following Judicial Council Committee
Comment to s. 809.62 (1g) is included to read as follows:

Judicial Council
Committee Comment

The definition in s. 809.62 (1g) codifies the holding
in Neely v. State, 89 Wis.2d755, 757-58, 279 N.W.2d255 (1979), to the
effect that a party cannot seek review of a favorable result merely because of
disagreement with the court of appeals' rationale.At the same time, s. 809.62 (1g) underscores
the fact that a court of appeals' decision that is generally favorable to a
party remains adverse to that party to the extent that it does not grant the
party all the relief requested, i.e., the full relief or the preferred form of
relief sought by the party.See alsoState v. Castillo, 213 Wis.2d488, 492, 570 N.W.2d44 (1997).

As an example, a criminal defendant seeking
reversal of his conviction or, if that is not granted, resentencing, would be
entitled to seek review of the court of appeals' failure to grant a new trial,
even if it did order resentencing.Similarly, a civil appellant challenging a verdict finding liability
and, should that be denied, the amount of damages, would be entitled to seek
review of the court of appeals' failure to grant a new trial on liability, even
if the court of appeals did order reassessment of damages.

Section 9.809.62 (1m) (title) of the statutes is
created to read:

809.62 (1m) (title)
General rule; time limit.

Section 10.809.62 (1r) (intro.) of the statutes is
created to read:

809.62 (1r)Criteria for granting review. (intro.)
Supreme court review is a matter of judicial discretion, not of right, and will
be granted only when special and important reasons are presented. The
following, while neither controlling nor fully measuring the court's
discretion, indicate criteria that will be considered:

Section 11.The following Judicial Council Committee
Comment to s. 809.62 (1m) and (1r) is included to read as follows:

Judicial Council
Committee Comment

Rules 809.62 (1m) and (1r) are former Rule 809.62
(1), divided into subsections and subtitled. Subtitles are added throughout
Rule 809.62 to help practitioners and parties locate particular provisions.

Section 12.809.62 (2) (title) of the statutes is created
to read:

809.62 (2) (title)
Contents of petition.

Section 13.809.62 (2) (a), (d) and (f) 2. of the
statutes are amended to read:

809.62 (2)
(a) A statement of the issues presented for reviewthe petitioner
seeks to have reviewed, the method or manner of raising the issues in the
court of appeals and how the court of appeals decided the issues.The statement of issues shall also
identify any issues the petitioner seeks to have reviewed that were not decided
by the court of appeals.The statement
of an issue shall be deemed to comprise every subsidiary issue as determined by
the court.If deemed appropriate by the
supreme court, the matter may be remanded to the court of appeals.

(d) A statement of the case containing a description of
the nature of the case; the procedural status of the case leading up to the
review; the dispositions in the trialcircuit court and court of
appeals; and a statement of those facts not included in the opinion of the
court of appeals relevant to the issues presented for review, with appropriate referencescitation to the record.

(f) 2. JudgmentThe judgments, orders,
findings of fact, conclusions of law and memorandum decisions of the circuit court
and administrative agencies necessary for an understanding of the petition.

Section 14.The following Judicial Council Committee
Comment to s. 809.62 (2) (a) is included to read as follows:

Judicial Council
Committee Comment

Rule 809.62(2)(a) is amended to require the
petitioner to identify all issues on which it seeks review, including issues
raised in the court of appeals but not decided in the court of appeals. The amendment to Rule 809.62(2)(a) also
clarifies that the statement of an issue incorporates all subsidiary
issues.This amendment is adapted from the
United States Supreme Court's rules.SeeU.S.
Sup. Ct. Rule
14.1(a).See alsoIn the
Interest of Jamie L., 172 Wis.2d218, 232-33, 493 N.W.2d56 (1992).

809.62 (3)
Except as provided in s. 809.32 (4), an opposing party may file a response to
the petition within 14 days after the service of the petition.If filed, the response may contain any of
the following:

(a) Any reasons for denying the petition.

(b) Any perceived defects that may prevent ruling on
the merits of any issue in the petition.

(c) Any perceived misstatements of fact or law set forth
in the petition that have a bearing on the question of what issues properly
would be before the court if the petition were granted.

(d) Any alternative ground supporting the court of
appeals result or a result less favorable to the opposing party than that
granted by the court of appeals.

(e) Any other issues the court may need to decide if
the petition is granted, in which case the statement shall indicate whether the
other issues were raised before the court of appeals,the method or manner of raising the issues in
the court of appeals, whether the court of appeals decided the issues, and how
the court of appeals decided the issues.

Section 18:809.62 (3) (title) of the statutes is created
to read:

809.62 (3) (title)
Response to petition.

Section 19.The following Judicial Council Committee
Comment to s. 809.62 (3) is included to read as follows:

Judicial Council
Committee Comment

Rule 809.62(3) is amended to advise the
respondent to apprise the supreme court, in the response to the petition, of
any issues the court may need to decide if it grants review of the issue(s)
identified in the petition.This applies
whether or not the court of appeals actually decided the issues to be raised.

The amendments to Rule 809.62(3) also advise the
respondent to identify in its response any perceived misstatements of law or
fact, or any defects (such as waiver, mootness, or estoppel) that could prevent
the supreme court from reaching the merits of the issue presented in the
petition.CompareU.S. Sup. Ct.
Rule 15.2.

Rule 809.62(3)(d) addresses the circumstance in
which the respondent asserts an alternative ground to defend the court of
appeals' ultimate result or outcome, whether or not that ground was raised or
ruled upon by the lower courts.

Rule 809.62(3)(d) also addresses the
circumstances in which the respondent asserts an alternative ground that would
result in a judgment less favorable than that granted by the court of appeals
but more favorable to the respondent than might be granted for the petitioner
(e.g., remand for a new trial rather than a rendition of judgment for the
petitioner).The language is modified from
Tex. R. App. P. 53.3(c)(3).

Rule 809.62(3)(d) and (e) are intended to
facilitate the supreme court's assessment of the issues presented for review,
not to change current law regarding the application of waiver principles to a
respondent. SeeState v. Holt, 128 Wis.2d110, 125, 382 N.W.2d679 (Ct. App. 1985) (An
appellate court may sustain a lower court’s holding on a theory or on reasoning
not presented to the lower court.)

Implicit in these amendments, although not
expressly stated as in the federal rule, U.S. Sup. Ct. Rule 15.2, is the
understanding that a respondent may be deemed to have waived issues or defects
that do not go to jurisdiction if they are not called to the attention of the
supreme court in a response to the petition.The supreme court retains its inherent authority to disregard any waiver
and address the merits of an unpreserved argument or to engage in discretionary
review under Wis. Stat. §§751.06 or 752.35.SeeState v. Mikrut,
2004 WI 79, ¶38. The possible invocation
of waiver for failure to raise such alleged defects in the response will
encourage the respondent to inform the supreme court of such defects before the
supreme court decides whether to expend scarce judicial resources on the case.SeeOklahoma
City v. Tuttle, 471 U.S. 808, 815-16 (1985).

A number of other states have rules requiring the
respondent to identify other issues it seeks to raise if review is granted, and
either expressly or impliedly limiting the issues before the supreme court on a
grant of review to those set forth in the petition and response.See Ariz. R. Civ. App. P. 23(e);
Calif. App. R. 28(e)(2) & (5); Kan. R.S. & A. Cts. Rule 8.03(g)(1);
N.C. R. App. P. 15(d) & 16(a); Oregon R. App. P. 9.20(2); Wash. R. App.
13.4(d).

A leading handbook on United States Supreme Court
practice describes the procedure in that Court as follows:

A
respondent may also choose to waive the right to oppose a petition, which seems
clearly without merit.This will save time
and money, without any substantial risk if respondent feels certain that
certiorari will be denied.In order that
the waiver will clearly be understood as based upon the lack of merit in the
petition, the statement filed with the Court–which may be in the form of a
letter to the Clerk–should contain language to this effect: "In view of
the fact that the case clearly does not warrant review by this Court [as is
shown by the opinion below], respondent waives the right to file a brief in
opposition."The letter may also
request leave to file a response to the petition if the Court wishes to see
one.This will seldom be necessary,
since if the respondent has not filed a response, or has affirmatively waived
the right to file, and if the Court believes that the petition may have some
merit, the respondent will usually be requested to file a response——usually within 30 days from
the request.

In
recent years, in order to expedite the filing of responses in the more
meritorious cases, the Solicitor General has waived the right to file
opposition briefs in many cases deemed to be frivolous or insubstantial.States often do the same thing, especially in
criminal cases.Such waivers should be
filed promptly, in order to speed up the distribution of the petition and the
disposition of the case.Usually such
petitions are denied, even though the Court may call for a response if any of
the Justices so request.

809.62 (3m)Petition for cross-review.(a) When
required; time limit.A party who
seeks to reverse, vacate, or modify an adverse decision of the court of appeals
shall file a petition for cross-review within the period for filing a petition
for review with the supreme court, or 30 days after the filing of a petition
for review by another party, whichever is later.

(b) No
cross-petition required.1.A petition for cross-review is not necessary
to enable an opposing party to defend the court of appeals' ultimate result or
outcome based on any ground, whether or not that ground was ruled upon by the
lower courts, as long as the supreme court's acceptance of that ground would
not change the result or outcome below.

2. A petition for cross-review is not necessary to
enable an opposing party to assert grounds that establish the party's right to
a result that is less favorable to it than the result or outcome rendered by
the court of appeals but more favorable to it than the result or outcome that
might be awarded to the petitioner.

(c) Rights and
obligations of parties.A party
seeking cross-review has the same rights and obligations as a party seeking
review under ch. 809, and any party opposing a petition for cross-review has
the same rights and obligations as a party opposing review.

Section 21.The following Judicial Council Committee
Comment to s. 809.62 (3m) is included to read as follows:

Judicial Council
Committee Comment

Rule 809.62(3m) is former Rule 809.62 (7)
renumbered and amended.The requirements
governing petitions for cross-review fit more logically after the requirements
for the petition and the response, contained in Rules 809.62(2) and (3).

Amended Rule 809.62(3m)(a) replaces the
permissive "may" with the mandatory "shall" to clarify that
a petition for cross-review is mandatory if the respondent seeks to reverse,
vacate, or modify an adverse decision of the court of appeals.

Amended Rule 809.62(3m) also clarifies when a
respondent must raise an issue in a petition for cross-review, rather than
raising the issue in a response to the petition or merely arguing it in the
brief.CompareState v.
Scheidell, 227 Wis.2d285, 288 n.1, 595 N.W.2d661 (1999) (respondent
cannot argue issue raised below unless the issue was raised in a petition for
cross-review), with, e.g., In the Interest of Jamie L.,
172 Wis.2d218, 232-33, 493 N.W.2d56 (1992) (noting "general
rule" that a petition for cross-review is not necessary to defend a
judgment on any ground previously raised).Complicating these matters are holdings that a party may not petition
for review (or cross-review) if it receives a favorable outcome from the court
of appeals, State v. Castillo, 213 Wis.2d488,
492, 570 N.W.2d44
(1997).

Rule 809.62(3m)(b) clarifies that a respondent
need not file a petition for cross-review to raise alternative issues or
grounds in support of either (1) the court of appeals' ultimate result or (2) a
judgment less favorable than that granted by the court of appeals but more
favorable to the respondent than might be granted for the petitioner.Any such alternative grounds for affirmance
or lesser relief should, however, be identified in the response. See Rules 809.62(3)(d), (3)(e) and (6).

Amended Rule 809.62(3m)(c) clarifies that a party
opposing a petition for cross-review has the same rights and obligations as a
respondent under Rule 809.62(3).

Section 22.809.62 (4) (title) of the statutes is created
to read:

809.62 (4) (title)
Form and length requirements.

Section 23. 809.62 (4m) of the
statutes is created to read as follows:

809.62 (4m)Combined response and petition for cross-review.When a party elects both to submit a response
to the petition for review and to seek cross-review, its submission shall be
titled "Combined Response and Petition for Cross-Review."The time limits set forth in sub. (3m) shall
apply.The response portion of the
combined document shall comply with the requirements of subs. (3) and (4).The cross-review portion of the combined
document shall comply with the requirements of subs. (2) and (4), except that
the requirement of sub. (2) (d) may be omitted.The cross-review portion shall be preceded by a blank white cover.A signature shall be required only at the
conclusion of the cross-review portion of the combined document.

Section 24. The following Judicial
Council Committee Comment to s. 809.62 (4m) is included to read as follows:

Judicial Council
Committee Comment

New Rule 809.62(4m) is created to permit a
combined document when a party elects both to respond to the petition for
review and to submit a petition for cross-review.The content and format requirements of the
combined document are similar to the requirements for a combined brief of respondent
and cross-appellant found in s. 809.19(6)(b)2.

Section 25.809.62 (5) (title) of the statutes is created
to read:

809.62 (5)
(title) Effect on court of appeals
proceedings.

Section 26.809.62 (6) of the statutes is amended to
read:

809.62 (6) The
supreme court may grant the petition or the petition for cross-review or
both upon such conditions as it considers appropriate, including the filing
of additional briefs.If thea
petition is granted, the petitionerparties cannot raise or argue
issues not set forth in the petition unless ordered otherwise by the supreme
court.The supreme court may limit the
issues to be considered on review.If
the issues to be considered on review are limited by the supreme court and do
not include an issue that was identified in a petition and that was left
undecided by the court of appeals, the supreme court shall remand that issue to
the court of appeals upon remittitur, unless that issue has become moot or
would have no effect.

Section 27.809.62 (6) (title) of the statutes is created
to read:

809.62 (6)(title) Conditions of grant of review.

Section 28. The following Judicial Council Committee
Comment to s. 809.62 (6) is included to read as follows:

Judicial Council
Committee Comment

The last sentence of Rule
809.62(6) is new and is intended to preserve, for review by the court of
appeals following remand, any issue raised at the court of appeals but not
decided by that court or by the supreme court on review. For instance, after a
civil jury verdict, an insured party might appeal issues relating to liability
and damages.The insurer might appeal
issues relating to coverage and damages.If the court of appeals reverses on the liability issue, without
deciding the coverage and damages issues, and the supreme court accepts review
on the liability issue only, amended Rule 809.62(6) preserves the damage and
coverage issues raised in the court of appeals and identified in the petition
or response for consideration by the court of appeals following remand and remittitur
from the supreme court. Remand of a preserved issue will not occur if the
supreme court's decision renders the issue moot or of no effect.

Section 29.809.62(7) of the statutes is repealed.

IT IS FURTHER ORDERED that the Judicial Council Committee
Comments are not adopted, but will be published and may be consulted for
guidance in interpreting and applying Wis. Stat. §§ 809.30, 809.32 and 809.62.

IT IS FURTHER ORDERED that notice of these amendments to
Wis. Stat. §§ 809.30,
809.32, and 809.62 be given by a single publication of a copy of this
order in the official state newspaper and in an official publication of the
State Bar of Wisconsin.